[2016] FWC 1321

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Ivana Gorlin
v
HNZ Australia Pty Ltd T/A HNZ Australia
(U2015/3783)

COMMISSIONER CAMBRIDGE

SYDNEY, 2 MARCH 2016

Application for unfair dismissal remedy - alleged serious misconduct - helicopter pilot alleged to have flown aircraft in a manner contrary to mandatory requirements of employer’s operational procedures - analysis of applicant’s conduct during flight - conduct of applicant not serious misconduct - no valid reason for dismissal - significant procedural deficiencies - dismissal harsh, unjust and unreasonable - compensation Ordered.

[1] This matter involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009 (the Act). The application was lodged at Melbourne on 8 March 2015. The application was made by Ivana Gorlin (the applicant or Captain Gorlin), who was represented by the Australian Federation of Air Pilots (AFAP), and the respondent employer is HNZ Australia Pty Ltd (the employer or HNZ).

[2] The application indicated that the date the applicant’s dismissal took effect was 17 February 2015. Consequently, the application was made within the 21 day time limit prescribed by subsection 394 (2) of the Act.

[3] The matter was not resolved at conciliation, and it has proceeded to arbitration before the Fair Work Commission (the Commission) in a Hearing conducted in Perth on 3, 4 and 5 November 2015.

[4] At the Hearing, Mr D Stephens from the AFAP, appeared for the applicant. Mr Stephens called the applicant and three other witnesses who provided evidence on behalf of the applicant. The employer was granted permission pursuant to s. 596 of the Act, to be represented by Mr R Wade, lawyer from Ashurst Australia solicitors. Mr Wade called a total of four witnesses who provided evidence on behalf of the employer.

Factual Background

[5] The applicant is a qualified helicopter pilot, holding the relevant Air Transport Pilot Licences and Instrument Ratings. She has also attained a Bachelor of Aviation and a Masters of Science and Technology (Aviation). The applicant was the first Australian female Black Hawk helicopter pilot. Prior to her employment with HNZ, the applicant had over 4,800 flight hours experience flying helicopters in military, paramilitary and civil operations in Australia, PNG, Indonesia, the Solomon Islands, Kenya, Tanzania, Iraq and the United Kingdom.

[6] The applicant commenced employment with HNZ in February 2013 as a helicopter Captain based in Karratha, Western Australia. The work of the applicant and other pilots engaged by HNZ at Karratha, relevantly involved the transfer of Marine Pilots onto ships. In June 2014, the applicant was promoted to the position of a Supervisory Captain.

[7] In around July of 2014, a dispute arose between HNZ and a number of its Karratha based helicopter pilots, including the applicant, concerning roster changes for pilots. The dispute was the subject of proceedings before (a different member of) the Commission.

[8] The applicant was dismissed by HNZ because of her alleged conduct during a flight that she undertook on 11 October 2014. On 11 October 2014, the applicant was the designated Captain of a scheduled flight to transfer a Marine Pilot from Karratha to a ship. The designated co-pilot or Pilot Not Flying (PNF) was Matthew Doyle (co-pilot Doyle).

[9] The flight on 11 October 2014 was undertaken pursuant to contractual arrangements between HNZ and the Rio Tinto Company. Relevantly, these contractual arrangements required HNZ to conduct the helicopter transfer of the Marine Pilot to the ship with two fully trained and accredited helicopter pilots on board the aircraft, such that each of these pilots are capable of flying the helicopter. Thus, both the Captain, in this instance the applicant, and co-pilot Doyle, had to be fully accredited and capable of being the Flying Pilot (FP) even if one or the other was the co-pilot or the PNF.

[10] Further, the contractual arrangements between HNZ and Rio Tinto stipulated that in order for a helicopter pilot to be considered to be fully trained, accredited and capable of being the FP, that particular pilot must have flown a stipulated number of hours (50) within the previous 90 day period. This particular requirement was referred to as the “client required currency.” Consequently, the contractual arrangements between HNZ and Rio Tinto included a requirement that for both helicopter pilots to be considered capable of being the FP, each had to satisfy the client required currency, and thereby have what was described as currency (or “recency”).

[11] On the previous day, 10 October 2014, the applicant was advised by her immediate superior, the Senior Base Pilot (SBP), that the co-pilot in that instance (not co-pilot Doyle), did not meet the client required currency, and that in order for that co-pilot to obtain currency he would need to complete two take-offs and landings before he could become the FP whilst carrying the client’s (Rio Tinto) passengers. The SBP instructed the applicant that the two take-offs and landings required for the co-pilot to obtain currency were to be conducted as part of normal operations. Consequently, the co-pilot would need to perform two operational take-offs and landings when none of the client’s passengers were aboard the helicopter in order for him to obtain currency. The applicant accepted this instruction.

[12] During the pre-flight briefing on 11 October 2014, the applicant advised co-pilot Doyle of the currency requirements that the SBP had instructed on the previous day. Co-pilot Doyle did not satisfy the client required currency, and in accordance with the instruction given to the applicant by the SBP on the previous day, co-pilot Doyle would have to complete two take-offs and landings (aka circuits) during normal operations and when the aircraft was not transferring the client’s passengers. Co-pilot Doyle questioned this arrangement, and he made telephone contact with the Acting Chief Pilot (ACP) who is superior in authority to the SBP. The applicant was then advised by co-pilot Doyle that the ACP had directed that no normal operations for the client were to be conducted until co-pilot Doyle had completed two take-offs and landings.

[13] The applicant, somewhat reluctantly, accepted the instruction of the ACP which had been conveyed to her via co-pilot Doyle, notwithstanding that it was directly contrary to the instruction that she had been given by the SBP on the previous day. In accordance with the relayed directive of the ACP, co-pilot Doyle then became the FP, and the applicant the PNF, so that the helicopter would be flown by co-pilot Doyle to complete two take-offs and landings at Karratha base, and before the Marine Pilot would board the helicopter for transfer to the ship.

[14] Co-pilot Doyle as the FP, conducted one of the various pre-flight procedures which is known as a power assurance check, and he identified a concern referred to as torque anomalies in one or both of the engines. There was a discussion between co-pilot Doyle and the applicant about the torque anomalies which had been identified. The engines were shut down and restarted. After restarting, the power assurance check was performed again and the torque anomalies appeared to have been rectified. Co-pilot Doyle then flew the two take-offs and landings at Karratha which allowed him to establish his currency.

[15] Once the two circuits had been completed, the applicant took over as the FP. The Marine Pilot then boarded the aircraft and the applicant piloted the flight from Karratha base to the ship, where it landed and the Marine Pilot disembarked.

[16] The next flight sector subsequently became the subject of considerable conjecture and disagreement. Although there was considerable conflict in the evidence regarding details of the flight from the ship back to Karratha, a broadly uncontroversial summary of the flight can be extracted by way of a balanced and objective analysis of the totality of the evidence.

[17] The applicant, as Captain and FP, briefed co-pilot Doyle regarding the take-off from the helipad on the ship. Captain Gorlin advised co-pilot Doyle that she would alter the usual parameters for such a take-off, and that she would increase the torque setting for the engines which would ordinarily be applied at 20% above hover power, to a torque setting of 100% above hover power. The applicant instructed co-pilot Doyle to observe various torque level monitoring instruments during the take-off from the ship helipad. The adoption of the increased torque settings for the take-off arose from the earlier identified torque anomalies issue, and represented the applicant placing the aircraft under more stringent operational conditions as part of what was understood to be a fault-finding exercise.

[18] As part of any pre-take-off briefing, the FP of the helicopter is required to advise the PNF of, inter alia, the altitude fixed for the Take-off Decision Point (TDP). The TDP is the predetermined altitude of the helicopter before which, if one of the two engines fail, the helicopter returns to the helipad, and once the TDP altitude is reached, if one of the two engines fail, the helicopter does not return to the helipad but instead can fly away. In this instance, the TDP which was prescribed by the relevant HNZ operating procedures manuals was set at an altitude of 35 feet.

[19] On 11 October 2014, during the pre-take-off briefing on the ship, the applicant advised co-pilot Doyle that the nominated TDP would be 35 feet. Generally, the TDP coincides with what is referred to as the rotation point, which is the point at which the helicopter commences to proceed in a horizontal direction, such that it commences to attain some ground speed (prior to the rotation point, the helicopter essentially has only vertical speed). As a fairly predictable result of the significantly increased torque settings that the applicant had adopted, the helicopter took off much faster than would have normally been the case, and the applicant rotated it at an altitude significantly above the TDP of 35 feet.

[20] The applicant then flew the helicopter back to the Karratha base. On the approach to landing at Karratha, the applicant conducted what has been described as three nose up manoeuvres. On one version, these manoeuvres were also described as being similar to “quick stops”. The nose up manoeuvres, like the full power take-off from the ship, were manoeuvres which involved the applicant placing the aircraft under more stringent operational conditions as part of a fault-finding exercise arising from the earlier identified torque anomalies. As in the case of the full power take-off from the ship, the applicant again directed co-pilot Doyle to observe the torque monitoring instruments while she performed the nose up manoeuvres.

[21] After the helicopter had landed at Karratha, the applicant formally recorded the torque anomalies, and she deemed the aircraft to be unserviceable and requiring appropriate technical investigation/rectification. In addition, the applicant made out a Flight Operations Occurrence Report, which is a report that was referred to by the acronym of a REAP report. The REAP reporting process involves the dissemination of REAP reports to all of HNZ’s pilots, who receive electronic advice including a copy of the relevant report, when any pilot lodges a REAP report. The REAP report completed by the applicant shortly after the completion of the flight on 11 October 2014, was given an identifying number of E13318.

[22] REAP report E13318 is titled “Inconsistent Interpretation of Recency” and it is confined to a report regarding the conflicting instructions regarding currency requirements. The report recounts the circumstances involving the SBP advising on 10 October 2014, that the co-pilot would not be able to obtain currency by completing two take-offs and landings other than as part of normal operations. While on 11 October 2014, the ACP instructed that co-pilot Doyle could undertake two take-offs and landings prior to the commencement of normal operations.

[23] Shortly after the applicant submitted the REAP report (E13318), co-pilot Doyle received a telephone call from the ACP, Mr Devescovi. ACP Devescovi had received by email a copy of the REAP report, and he wanted to discuss the report with co-pilot Doyle. ACP Devescovi met with co-pilot Doyle and interviewed him in detail about the flight. During this interview, which lasted for approximately an hour, co-pilot Doyle gave ACP Devescovi his account of the issue regarding currency requirements. Further, co-pilot Doyle recounted events relating to the flight, which included the torque anomalies identified before departure, the full power take-off from the ship, and the nose up manoeuvres on approach to landing at Karratha base.

[24] Co-pilot Doyle was directed to provide a written report to ACP Devescovi and to Mr Shugrue, the Head of Flying Operations (HFO) regarding the applicant’s REAP report E13318. In an email dated 13 October 2014, co-pilot Doyle sent a statement to HFO Shugrue and ACP Devescovi. This statement was made by co-pilot Doyle with reference to handwritten notes that he had taken during the interview that he had with ACP Devescovi shortly after the flight on 11 October.

[25] On 6 November 2014, HFO Shugrue wrote to the applicant and sought her response to “potentially serious events, occurring on or around the 11^th of October”. This letter then erroneously referred to a flight on the 12^th October. However, it identified, inter alia, the issues of the identified torque anomalies, the full power take-off from the ship, and the nose up manoeuvres on approach to landing at Karratha. The applicant was asked to respond with an explanation, particularly focusing upon the prospect that the aircraft was taken on a commercial flight with a suspected defect, and checks were conducted by memory rather than by reference to a hardcopy checklist.

[26] The applicant provided a response dated 14 November 2014, addressed to HFO Shugrue, in which she denied what she referred to as Allegation 1, namely, that she had operated an aircraft with known anomalies or defects, and she indicated that she did not understand what she referred to as Allegation 2, concerning the lack of checklist usage. HFO Shugrue sent the applicant an email on 17 November 2014, which advised, inter alia, that the applicant’s statement of 14 November was “…in stark contradiction to that received from the Co-Pilot…” HFO Shugrue further advised that the matter would be the subject of a full investigation by the Safety and Quality Department and therefore the Safety and Quality Director (SQD), Mr Steve Walters, would have further conduct of the matter.

[27] On 10 December 2014, SQD Walters sent the applicant an email which advised that he was conducting further investigation into her REAP report E13318. The email from SQD Walters mentioned that there was some dispute regarding elements of the relevant flight, and that he proposed to meet with the applicant as he believed that the issues in dispute would be best resolved through discussion.

[28] On about 12 December 2014, SQD Walters conducted a telephone interview with co-pilot Doyle. During this interview, co-pilot Doyle provided more detail about the matters that were included in the statement that he had made on 13 October 2014.

[29] On 16 December 2014, SQD Walters sent a further email to the applicant which asked her to respond to three particular aspects of the flight of 11 October 2014. The three particular aspects that were identified in this communication were; the identification of torque anomalies; the full power take-off from the ship; and the nose up manoeuvres on approach to landing at Karratha. At around this time the applicant was on leave in the USA.

[30] On about 18 December 2014, a discussion occurred between HFO Shugrue, and the Chief Pilot, Australia, (CP) Mr Alan Findlay, who had returned from leave and effectively displaced the ACP, Mr Devescovi. During this discussion, there was disagreement between HFO Shugrue and CP Findlay about the process that should be adopted for dealing with the on-going investigation into REAP E13318. In the absence of agreement about the approach to the on-going investigation, it was decided that the applicant should be suspended from further flying duties until the investigation was concluded. Consequently, CP Findlay advised the applicant that she had been suspended from duty on and from 18 December 2014.

[31] Following the applicant’s suspension from duty, there was a series of communications between the AFAP, acting on behalf of the applicant, and HNZ, which broadly identified complaint and disagreement about the applicant’s suspension from duty and associated issues. Notwithstanding these communications from the AFAP on behalf of the applicant, the applicant sent an email communication dated 29 December 2014 to SQD Walters, which responded to his email of 16 December in respect to the three particular aspects of the flight of 11 October that had been identified.

[32] The applicant’s email of 29 December provided a response to each of the three aspects of the flight which had been identified as issues of concern. Essentially the applicant rejected that she had either flown the helicopter with a known defect, or that the full power take-off from the ship and the nose up manoeuvres on approach to landing at Karratha, represented any breach of established, acceptable flying procedure.

[33] In order to progress the investigation, SQD Walters decided to obtain the digitally recorded flight data from 11 October 2014. This flight data monitoring information is referred to by the acronym FDM. The FDM for the flight of 11 October 2014 was provided to SQD Walters on 13 January 2015. The FDM report was then analysed by SQD Walters and HFO Shugrue. SQD Walters then prepared an investigation report, and drew various conclusions in respect to what he described as the stark contrast in the applicant’s account of the flight of 11 October and that provided by co-pilot Doyle. On 26 January 2015, SQD Walters provided HFO Shugrue with a copy of the completed investigation report.

[34] HFO Shugrue reviewed the investigation report, from which he drew various conclusions in respect to the three particular aspects of concern regarding the flight of 11 October 2014. In broad terms, HFO Shugrue felt that the information from the investigation report and the FDM report, had demonstrated that the applicant had taken an unserviceable aircraft flying, and she had jeopardised the safety of the aircraft by not following company operating procedures when departing the ship. Consequently, HFO Shugrue requested that the HNZ Human Resource Manager (HRM), Ms Nina Dillon-Phillips, organise a meeting with the applicant to provide an opportunity for the applicant to respond to the allegations in respect to the flight of 11 October 2014.

[35] A telephone conference was held on 17 February 2015, for the purposes of hearing from the applicant in response to the allegations regarding the flight of 11 October 2014. Those participating in the telephone conference were; HFO Shugrue; HRM Dillon-Phillips; the applicant; and her AFAP representative.

[36] At the commencement of the telephone conference on 17 February 2015, allegations were put to the applicant in terms that she had piloted an aircraft with an identified defect, and that she had executed take-off manoeuvres from the ship and nose up manoeuvres on approach to landing, which were inappropriate and in breach of HNZ operating procedures. The applicant provided various verbal responses to these allegations. There was then a break in the meeting, and upon resumption HRM Dillon-Phillips advised the applicant that her employment was terminated. The applicant was paid one month’s remuneration in lieu of notice. The applicant was provided with a letter dated 18 February 2015, which confirmed her dismissal from employment “… for not complying with Company SOPs,…”.

[37] On 9 March 2015, the applicant obtained alternative employment as a helicopter pilot with another employer. The alternative employment provides for lower remuneration than that provided to the applicant in employment with HNZ.

The Case for the Applicant

[38] Mr Stephens from the AFAP, who appeared for the applicant at the Hearing, provided extensive documentary submissions. Mr Stephens submitted that the dismissal of the applicant was harsh, unjust and unreasonable. Mr Stephens referred to various decided cases as Authorities, which formed the basis for the legal principles which he submitted were appropriate to the determination required in this instance.

[39] Mr Stephens submitted that the appropriate legal principles needed to be considered in the context of the provisions of s. 387 of the Act. In broad terms, according to the submissions made byMr Stephens, the dismissal of the applicant was harsh, unjust and unreasonable because there was no valid reason for the finding of serious misconduct made against the applicant. Further, Mr Stephens submitted that the termination of the applicant's employment was harsh, unjust and unreasonable because the applicant’s right to procedural fairness and natural justice were breached.

[40] In respect to the issue of there being no valid reason for the dismissal of the applicant, Mr Stephens made a primary submission that the applicant did not breach any standard operating procedure (SOP) of the respondent. Mr Stephens further submitted that any SOP asserted by the respondent to have been breached, was both ambiguous and non-instructive, and therefore any such breach could not be formulated to be a valid reason for dismissal.

[41] Mr Stephens submitted that it was simply not open to the respondent to find that the applicant had breached any of its SOP’s. In particular, Mr Stephens stressed that the conduct of the applicant during the flight on 11 October 2014 could not, in all of the circumstances, reasonably constitute serious misconduct as had been found by HNZ. It was submitted by Mr Stephens that there was no mandated obligation for the applicant (or any other pilot) to rotate the helicopter at TDP. Mr Stephens said that this position was confirmed by the evidence of Mr Findlay, who was the former Chief Pilot of HNZ.

[42] It was further submitted by Mr Stephens that the evidence did not support the respondent’s conclusion that the elevated rotation above TDP during the take-off from the ship, represented some threat to the safety of others, or of property, or the aircraft. Mr Stephens also referred to detailed submissions regarding the other aspects of the flight on 11 October 2014 which he submitted, upon analysis, could not establish that the applicant flew the helicopter with the knowledge that it had a defect, nor that the nose up manoeuvres involved any flight of the aircraft outside of acceptable operational parameters.

[43] Mr Stephens made further submissions which criticised what he claimed to be the absence of clarity provided for the reason for dismissal. Specifically, Mr Stephens referred to the broad description of not complying with Company SOPs. Mr Stephens submitted that the applicant was left to guess just which particular SOPs she was found by the respondent to have not complied with. Mr Stephens also criticised what he said were substantially new reasons for dismissal relied upon by the respondent, and which were never put to the applicant prior to her dismissal.

[44] In further submissions, Mr Stephens was severely critical of what he said was the failure of the respondent to provide the applicant with an opportunity to be interviewed during the investigation, and before the investigation report presented conclusions as facts. Mr Stephens submitted that this compared starkly with the opportunities that were afforded to the applicant’s accuser, co-pilot Doyle.

[45] Further, in respect to the issue of a support person providing assistance to the applicant, Mr Stephens acknowledged that the applicant did have a support person with her at the termination meeting. However, Mr Stephens made stringent criticism of the respondent’s position, whereby it suggested that she would not be interviewed during the investigation because of representations that had been made on her behalf by her Union.

[46] Mr Stephens made further submissions which noted that the respondent was a large international corporation with ample resources, including dedicated human resource management experts. However, according to the submissions made by Mr Stephens, the applicant was denied procedural fairness and the process that the respondent adopted was tardy and not reflective of the purported seriousness of the allegations which it ultimately found proven. Mr Stephens made note of the delay of 68 days between the alleged serious misconduct, and the act of suspending the applicant from the performance of duties. Further, Mr Stephens criticised the fact that the entire process before dismissal took approximately 20 weeks.

[47] According to the submissions made by Mr Stephens, the applicant was treated differently to both the co-pilot and in respect to other pilots who have rotated through TDP repeatedly. Mr Stephens stressed that the applicant was denied the right to be interviewed and provide comprehensive written responses to allegations, while her accuser was granted two detailed interviews.

[48] Mr Stephens also submitted that the person who authorised the applicant’s dismissal was not authorised to do so, and further that the actions of the applicant were in no way malevolent, but were actions which were taken in the interests of the respondent. Further, Mr Stephens also mentioned the personal circumstances of the applicant, including that the applicant had a long and distinguished career as a pilot, and the respondent had deliberately attempted to discredit the reputation of the applicant by making a public disclosure naming the applicant in a report to the Civil Aviation Safety Authority.

[49] Mr Stephens summarised his submissions by concluding that the dismissal of the applicant was harsh, unjust and unreasonable because the reason given for dismissal was not a valid reason. In particular, Mr Stephens submitted that the totality of the evidence did not support that the applicant had conducted any aspect of the flight of 11 October 2014, in a manner which constituted serious misconduct. Further, he said that the applicant had been denied procedural fairness, and she had been treated differently to other pilots employed by the respondent.

[50] Mr Stephens urged that the Commission find in favour of the applicant and he made detailed submissions in respect to remedy. It was submitted that the applicant did not seek reinstatement but rather compensation, and that in all the circumstances, compensation of the maximum amount that could be calculated, a figure of $87,323.10, should be Ordered as appropriate remedy for the unfair dismissal of the applicant.

The Case for the Employer

[51] The employer was represented by Mr Wade who provided extensive written submissions. Mr Wade submitted that the dismissal of the applicant was not in any respect either, harsh, unjust or unreasonable within the contemplation of s. 385 of the Act.

[52] The submissions made by Mr Wade asserted that the important factual conflicts arising from the evidence of the applicant, as it differed from that of co-pilot Doyle, should be resolved in favour of the version provided by co-pilot Doyle, which was supported by the flight data report (FDM). Further, according to the submissions of Mr Wade, the applicant’s evidence suffered certain inconsistencies such as the initial documentary response, which indicated a rotation slightly higher than TDP when, upon analysis of the FDM, that statement of the applicant’s appeared to be deliberately misleading.

[53] Mr Wade made detailed submissions which analysed the evidence of the three allegations which the employer found proven, and applied as the basis for the dismissal of the applicant. These three allegations involved the conduct of the applicant during the flight of 11 October 2014, whereby; firstly, she piloted the aircraft in circumstances where she knew or reasonably should have known, that it had a defect; secondly, the vertical take-off from the ship involved a rotation at approximately 200 feet, being approximately six times in excess of the height at which the aircraft was required by the SOP’s to have rotated away from the vessel; and, thirdly, she executed a non-standard landing involving a rapid deceleration and relatively large pitch change on arrival at Karratha.

[54] After making detailed submissions concerning each one of the three aspects of concern regarding the flight of 11 October 2014, Mr Wade submitted that there was support for the findings made by the employer which, in essence, were that the applicant had piloted an unserviceable aircraft, performed a non-standard take-off from a moving vessel, and executed a non-standard landing at Karratha. Mr Wade submitted that these events all breached the Company’s SOP’s and introduced serious safety concerns.

[55] Mr Wade made further submissions in respect to the alleged procedural deficiencies that had been advanced on behalf of the applicant. It was submitted that the show cause meeting, at which the applicant was ultimately dismissed, involved the applicant being properly informed of the substance of the respondent’s findings, and being afforded a full and fair opportunity to respond to the reasons for her dismissal. Mr Wade stressed that the applicant had been provided with the FDM report, the comprehensive report of SQD Walters, and the statement of co-pilot Doyle, almost two weeks in advance of the meeting. In these circumstances, it was submitted by Mr Wade that the applicant had full and fair opportunity to advance representations during the course of the show cause meeting, and she did not take that opportunity.

[56] Further, according to the submissions made by Mr Wade, even if the applicant could establish some level of relevant procedural deficiency, such deficiency would not be such that it rendered the dismissal of the applicant unfair, because the applicant’s misconduct was manifestly serious and deserving of dismissal. In addition, Mr Wade submitted that even if an element of unfairness was established, the applicant was not deserving of any relief and certainly not deserving of the quite excessive and speculative compensation contained in the applicant’s submissions.

[57] The submissions made by Mr Wade were supported by reference to various decided cases and Authorities which operated to confirm that the circumstances in this instance established valid reason for dismissal, and that if any aspect of the process that was adopted by the employer was defective, such a defect should not displace the valid reason for dismissal such that a finding of unfairness could be made.

[58] The submissions made by Mr Wade were also framed to address the various factors contained within s. 387 of the Act. In particular, in respect to subsection 387 (h) of the Act, Mr Wade submitted that strong reliance should be made upon the enforcement of safety standards, and this was particularly relevant in the present circumstances. Further, Mr Wade submitted that the applicant had an abject lack of remorse for her conduct which represented a serious dereliction of her duties and responsibilities as a Captain of an aircraft.

[59] In summary, the submissions made by Mr Wade contended that the evidence established that the three aspects of concern arising from the flight of 11 October 2014, were proven, and provided valid reason for the applicant’s dismissal. Further, Mr Wade submitted that if there were any procedural deficiencies found with the process that led to the dismissal of the applicant, they were matters that were insignificant and incapable of displacing the valid reasons for dismissal.

[60] The submissions made by Mr Wade urged the Commission to find that the dismissal of the applicant was not unfair, and therefore the application should be dismissed. As an alternative submission, it was put that if there was some element of unfairness attended upon the dismissal of the applicant, the nature of her misconduct was such that no relief should be forthcoming and therefore the application should be dismissed accordingly.

Consideration

[61] Section 385 of the Act stipulates that the Commission must be satisfied that 4 cumulative elements are met in order to establish an unfair dismissal. These elements are:

(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.

[62] In this instance, there was no dispute that the matter was confined to a determination of that element contained in subsection 385 (b) of the Act, specifically whether the dismissal of the applicant was harsh, unjust or unreasonable. Section 387 of the Act contains criteria that the Commission must take into account in any determination of whether a dismissal is harsh, unjust or unreasonable. These criteria are:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.

387 (a) - Valid reason for the dismissal related to capacity or conduct

[63] The reason for dismissal stated in the letter to the applicant dated 18 February 2015, was manifestly inadequate such that, prima facie, to dismiss someone for “…not complying with Company SOPs,” would, without further elaboration and specification, represent an absence of valid reason for dismissal. The lack of proper specification of the reason for the applicant’s dismissal is a reflection of broader deficiencies, and error in the procedure that was adopted by HNZ as it dealt with the investigation of the flight of 11 October 2014. The approach of HNZ was severely flawed from the outset when, in response to the REAP E13318 made by Captain Gorlin, the ACP, Mr Devescovi, contacted and then interviewed the co-pilot and made no contact with the person who had submitted the REAP.

[64] Notwithstanding the inadequate specification of the stated reason for dismissal, and despite a severely flawed procedure for investigation and ultimate determination to dismiss from employment, the Commission is required to examine the evidence presented so as to ascertain whether valid reason existed to justify the dismissal, albeit not properly stated. Therefore, the Commission has been required to “go behind” the flimsy description stated by HNZ as the reason for dismissal so as to determine; firstly, what did most likely occur during the flight on 11 October 2014; and, secondly; did whatever take place in respect of the applicant’s conduct represent noncompliance with HNZ operating procedure; and thirdly; did the conduct of the applicant represent valid reason for her dismissal.

[65] There were three components identified as encompassed by the noncompliance with Company SOPs. HNZ found that, during the flight on 11 October 2014, the applicant, (a) piloted the aircraft with identified torque anomalies; and (b) in the take-off from the ship she climbed vertically to approximately 200ft before rotation; and (c) on approach to landing at Karratha she undertook inappropriate manoeuvres.

The Torque Anomalies

[66] The torque anomalies issue was translated into a finding by HNZ that the applicant took the helicopter on the third and fourth flight sectors of the flight on 11 October 2014, (from Karratha to the ship and return), when she knew or should have known, that the aircraft had a defect. This conduct was not identified to be linked to any particular operational procedure, but it was more of a fundamental safety breach. The underlying proposition regarding this alleged conduct firstly raises the rhetorical question; why would any pilot fly an aircraft if they knew it was defective?

[67] There is an acknowledged and accepted concern that a pilot may develop a propensity for risk taking, particularly if a series of factors coalesce. There are a multitude of potential factors which can contribute to a serious safety risk. In this instance, a number of factors started to develop for the flight on 11 October, which laid the foundation for a serious safety risk.

[68] The conflicting instructions that were given regarding the co-pilot’s currency were conveyed without direct communication with the Captain of the aircraft. Plainly, the junior member of the crew had sought and obtained an instruction that countermanded that given by the Captain. The countermanding instruction from ACP Devescovi was relayed via the co-pilot, rather than there being any consultation and explanation provided directly to the Captain. These circumstances would, on even the most basic assessment, create the prospect of immediate tension between Captain and co-pilot. Thus, a communication problem between Captain and co-pilot was created.

[69] The countermanded instruction also meant that the flight to the ship would be delayed while co-pilot Doyle flew two circuits at Karratha. Thus, a second factor contributing to potential for serious safety risk emerged, that being that the flight would now be late. In this circumstance, with two potential serious safety risk factors in place, the power assurance check was commenced and the torque anomalies were identified.

[70] The evidence strongly suggested that the co-pilot accepted the Captain’s greater knowledge and experience with the AW109 helicopter, and he was sufficiently satisfied that the torque anomalies issue had been resolved so he embarked on the two circuits of Karratha. Co-pilot Doyle gave evidence that when he flew the two circuits, he thought that the collective movement required to hover was higher than normal, and that there was a lag between collective movement and peak torque.

[71] The FDM, which was subsequently obtained, confirmed that there was a torque issue with the engines. The aircraft should not have been flown, and another helicopter, which was available, should have been taken. Co-pilot Doyle gave evidence that, in hindsight, he and Captain Gorlin flew a defective aircraft 1.

[72] The hindsight that co-pilot Doyle identified may have materialised as sound judgement at the commencement of sectors 1, 2 or 3 of the flight of 11 October, had there not been the circumstances created by the countermanded instruction of the Captain. Without the communication tension, and without the lateness, either pilot, (or more likely by a joint decision of both Captain Gorlin and co-pilot Doyle), may have declared the helicopter unserviceable (aka snagged the aircraft) and another helicopter used instead.

[73] Should then the applicant have been held solely responsible for the torque anomalies issue? Co-pilot Doyle was the FP for sectors 1 and 2 of the flight of 11 October. His concerns about the torque anomalies that he had identified were apparently assuaged by Captain Gorlin. However, he did fly the helicopter with a suspicion that it was defective. He had been prepared to question the Captain’s judgement only a few minutes earlier in respect to the currency issue, but he chose not to challenge her in respect to the torque anomalies issue. It would seem that if Captain Gorlin committed some misconduct in respect of the torque anomalies issue, then, to some extent, co-pilot Doyle also committed misconduct.

[74] The reality of the circumstances, when properly evaluated in totality, must recognise that both pilots probably erred in respect to the torque anomalies issue. However, the suspicion of a defect is sometimes a matter of fine judgement for pilots, and in the case of the flight of 11 October 2014, the judgement required of both Captain Gorlin and co-pilot Doyle had in effect, been contaminated by the circumstances which arose from the countermanding instruction relayed from ACP Devescovi. Consequently, if responsibility for the torque anomalies issue is properly and objectively evaluated, then each of Captain Gorlin, co-pilot Doyle, ACP Devescovi, and HNZ itself, should be held accountable. It would be plainly unjust and unreasonable to assign entire responsibility for the torque anomalies issue upon the applicant.

The Full Power Take-Off from the Ship

[75] The applicant had decided to implement what I have described as a full power take-off from the ship as a fault-finding manoeuvre arising from the earlier identified torque anomalies. As a result, the helicopter climbed vertically much more rapidly than would ordinarily be the case. The FDM confirmed that the helicopter had reached an altitude of approximately 200 feet before it rotated and commenced any horizontal flight to Karratha. This manoeuvre, involving rotation at approximately 200 feet, was found by HNZ to be in breach of its documented operating instruction number OI 2013-08. Further, it was asserted by HNZ that such a vertical climb introduced safety risks.

[76] During both the employer’s investigation prior to the applicant’s dismissal, and as evidence in the Hearing of the unfair dismissal claim, there was much conjecture regarding the particular wording of OI 2013-08. HNZ contended that on departure from the ship deck, OI 2013-08 mandated that rotation was to occur at TDP which was 35 feet. The applicant asserted that OI 2013-08 did not properly prescribe procedures for the departure from a ship deck (for various technical reasons) or, in any event, it did not mandate that rotation was to occur at actual TDP.

[77] The dispute over whether HNZ’s operational instructions mandated rotation at TDP underscored a significant component of the misconduct of the applicant that HNZ established as the basis for her dismissal, albeit not clearly stated as such. The relevant conclusion that was reached in the report of SQD Walters was that rotation at approximately 200 feet was a “…direct contravention of OI requirements and in contradiction to sound operational judgement…” 2 The evidence provided by HFO Shugrue acknowledged that the applicant did not believe that it was mandatory for rotation to occur at 35 feet3. The position of the applicant was summarised when she said “… normally we rotate at 35 feet but there’s no reason why I couldn’t rotate higher.”4

[78] The relevant wording of OI 2013-08 unequivocally fixes a TDP of 35 feet, which had been lowered in November 2013 from a previous TDP altitude of 50 feet. There are three sentences in the operating instruction which mention rotation.

[79] Firstly, under the heading of “Technique” OI 2013-08 states:

“Technique

It should be noted that the correct application of power at the beginning of the take-off procedure is essential to ensure not only a positive rate of climb through the TDP but a dynamic flight condition as the aircraft rotates at TDP.”

[80] Secondly, under the heading of “Pre-empting TDP”, OI 2013-08 includes the following two relevant sentences:

“Pre-empting TDP

It has been noted that the use of two pilots on the AW109 operation often results in a small delay between the PNF calling “TDP” and the actual rotation initiated by the PF at TDP. It is therefore permissible to pre-empt the TDP call by 5ft to ensure that rotation on departure occurs at the actual TDP.”

[81] It is abundantly clear from the wording of OI 2013-08 quoted above, that rotation at TDP is the intended outcome. This part of the operating instruction is clearly directed at having pilots rotate the helicopter at TDP. Obviously, rotation should not occur prior to TDP, so the operating instruction is constructed with the undeniable intention to avoid rotation at altitude above the TDP of 35 feet. However, the evidence provided by the former chief pilot of HNZ, Mr Findlay, provided persuasive support for the applicant’s proposition that rotation at TDP was not mandatory. 5

[82] A careful evaluation of all of the relevant evidence, including; (a) the specific wording of OI 2013-08; (b) the testimony of the various expert witnesses, particularly former CP Findlay; and (c) the subsequent flight data monitoring material 6 which recorded incidents when rotation heights did not correlate with the TDP of 35 feet; provides compelling basis to conclude that there is a general requirement for rotation to occur as close as practicable to the TDP of 35 feet. However, logically, particular circumstances may provide legitimate basis for a pilot to exercise discretion such that rotation may occur above the TDP of 35 feet.

[83] In respect of the full power take-off from the ship during the flight of 11 October 2014, the applicant advised co-pilot Doyle that she anticipated rotation higher than TDP, and the rate of vertical climb with application of full power was probably underestimated. Therefore, the helicopter significantly exceeded TDP before it rotated. However, this elevated point of rotation was an almost natural consequence of the applicant’s fault-finding exercise and cannot be characterised as a malevolent act of disobedience or other misconduct.

[84] It is also relevant to note that OI 2013-08 contains the following sentence in the paragraph headed “Technique”:

“A slow climb to the TDP caused by a reluctant application of power will extend the exposure period during the take-off and should be avoided at all times.”

[85] There was also considerable contest as to whether significant safety implications arose from a significantly higher altitude for rotation. Broadly speaking, the expert evidence of Messrs Snell and Ogden strongly supported the proposition that more vertical height obtained from take-off could be translated into airspeed, thus enabling the aircraft to travel away from the ship and possibly avoid collision in the event of engine failure or another potentially catastrophic circumstance. On the other hand, the loss of visual reference as altitude increased was suggested as providing for an increased risk associated with higher vertical climb before rotation and travel away from the vessel.

[86] There are obvious inefficiencies associated with any unnecessary extended vertical climb. However, on balance, the evidence presented in this instance does not establish that the rapid vertical climb and elevated point of rotation at about 200 feet, as was executed by the applicant on departure from the ship during the flight of 11 October 2014, represented a serious safety breach which jeopardised the aircraft, co-pilot Doyle, the vessel, and its occupants, as was asserted by HFO Shugrue. 7

Nose up Manoeuvres on Approach to Landing at Karratha

[87] Of the three components of alleged misconduct of the applicant during the flight of 11 October 2014, the nose up manoeuvres on approach to Karratha was, on an objective analysis, considered to be the least serious. The communication from HNZ to the applicant which advised of the serious formal meeting (via Skype conference), did not even make mention of the approach to landing at Karratha, but instead framed the allegations for discussion at the meeting as;

“1) you took an unserviceable aircraft flying on 11 October 2014 and
2) you jeopardise the safety of the aircraft by not following Company SOP’s when departing the vessel” 8[emphasis added]

[88] In addition, it is relevant to note that, in respect to the nose up manoeuvres on approach to landing at Karratha, the report of SQD Walters made a conclusion which stated that “… the decision to conduct non-standard pitch adjustments during the flare for landing is considered imprudent.” 9 Further, co-pilot Doyle in his expansive statement of June 2015, said that he considered the manoeuvres on approach to landing at Karratha as not “…a prudent way to conduct the landing…”10 while, in contrast, earlier in that statement he considered the take-off from the ship to be “…manifestly unsafe”11.

[89] A careful and balanced consideration of the totality of the evidence that was presented, particularly having regard for the FDM, has confirmed that the manoeuvers that the applicant undertook on approach to landing at Karratha involved placing the aircraft under more stringent but not excessive, operational conditions. The applicant performed these manoeuvers as part of a fault-finding exercise, which was aimed to confirm or dispel the suspicion that had developed when the initial power assurance check conducted by co-pilot Doyle, had displayed torque anomalies.

[90] The nose up manoeuvers on approach to landing at Karratha did not exceed any operational requirements, flight parameters, or other stipulated regulation, nor did these manoeuvers create any heightened, identifiable safety risk. The applicant’s actions, when she undertook these manoeuvers, were not motivated by any malevolence nor did they represent disobedience or negligent disregard for the aircraft, or the employer’s operation. On the contrary, the applicant was acting out of concern for the next flight crew who would use the aircraft, and, somewhat ironically, to protect the interests of HNZ.

The Different Recollections of the Flight

[91] It is relevant to make some mention of certain discrepancies that have been recognised in respect to various recollections of the flight of 11 October 2014. There were two documentary records of the flight which can be described as contemporaneous, as they were created shortly after the completion of the flight. The applicant made out the REAP report, E13318, within a matter of minutes after the flight. Two days later (13 October), co-pilot Doyle made his statement 12 which was apparently constructed with the assistance of notes that he had taken during his interview with ACP Devescovi, which had occurred very shortly after REAP E13318 had been disseminated.

[92] It is important to recognise that the subsequent and more expansive witness statement made by co-pilot Doyle in June 2015 13 was not available to either HNZ or the applicant during the investigation into and determination of the matter. There are striking differences between the statement made by co-pilot Doyle on 13 October 2014, and the contents of his subsequent witness statement dated 26 June 2015. These differences were identified at the Hearing during the cross-examination of co-pilot Doyle, and substantial incongruities are readily discernible from even a cursory reading of the two documents. Matters such as his subsequent recollection that during the take-off from the ship he repeatedly told Captain Gorlin words to the effect that, “we need to roll” (meaning rotate), and that the helicopter was drifting towards the ship’s superstructure, were surprising omissions from his statement of 13 October 2014.

[93] The nebulousness of recollection usually increases in direct correlation with the time elapsed since an event occurred. Imprecision is an understandable human trait which can be identified in even contemporaneous recollections. For example, in respect to the flight of 11 October 2014, the applicant thought that she rotated at slightly above TDP, but of course she was not monitoring the altimeter as was co-pilot Doyle who, in his statement of 13 October, thought that rotation occurred “…from approximately 110 ft RADALT.” 14 The FDM report strongly suggested that rotation occurred “... as the aircraft passed through 190ft to 228ft.”15

[94] It is somewhat difficult to understand how the contemporaneous statement of co-pilot Doyle omitted various notable aspects of the flight of 11 October 2014 which were contained in his subsequent, more expansive statement of 26 June 2015. Further, it remains something of a mystery as to why a flight with the characteristics that were subsequently detailed, would not have prompted some earlier written recording and reporting. Perhaps the most generous explanation for these incongruities may be that with the passage of time, co-pilot Doyle may have confused and transposed events that have occurred on other flights, as part of his subsequent recollection of aspects of the flight of 11 October 2014.

[95] The Commission has undertaken a careful consideration of all of the evidence regarding the three aspects of the flight of 11 October 2014, which represented the reason that underpinned the stated reason for the dismissal of the applicant, namely that she did not comply with “Company SOP’s.” This analysis has led to the conclusion that these aspects of the flight of 11 October 2014, could not, either singularly or in combination, represent a sound and defensible reason for the dismissal of the applicant. Importantly, on any construction of the conduct of the applicant during the flight of 11 October 2014, there could be no finding made that the applicant intentionally committed misconduct, or that she recklessly engaged in conduct which would provide justifiable basis for dismissal. Therefore, the dismissal of the applicant was not for valid reason. Consideration of the other elements contained in s.387 of the Act must also be undertaken.

387 (b) - Notification of reason for dismissal

[96] HNZ provided written notification of the reason for the applicant's dismissal. Unfortunately, as previously stated, the notified reason for dismissal was woefully inadequate.

387 (c) - Opportunity to respond to any reason related to capacity or conduct

[97] HNZ conducted an extensive investigation into the flight of 11 October 2014. There were a number of disturbing aspects of that investigation that the employer should carefully reflect upon.

[98] The applicant made a REAP report on 11 October 2014, the subject of that report was the inconsistent instruction that she had been given in respect to how pilots could achieve recency. The response to this REAP by the then ACP Devescovi, was to make contact with co-pilot Doyle and interview him, rather than to initiate any communication with the applicant.

[99] Subsequently co-pilot Doyle made a statement about the flight of 11 October 2014, which introduced issues other than the subject matter of the REAP, which was confined to the procedure for pilots to obtain recency. The applicant was not made aware that co-pilot Doyle had been approached and interviewed by ACP Devescovi, nor was she advised that co-pilot Doyle had made a statement about the flight of 11 October 2014. These circumstances were elaborated upon during the evidence provided by the former HNZ CP Findlay, wherein he relevantly stated:

“I was uncomfortable that several people had been pushed to provide a statement in relation to the alleged events that happened and the statements had been requested prior to the person being accused and being even aware that there was any form of case being formed against her. So at that time nobody had spoken to her at all about it and I felt uncomfortable that it could be perceived that a dossier was being prepared against her basically what dirt could be obtained prior to her even being spoken to.” 16

[100] The statement of co-pilot Doyle was forwarded to HFO Shugrue on 14 October 2014 and on 6 November 2014, HFO Shugrue wrote to the applicant inviting her to comment about matters which had been incorrectly referred to as occurring during a flight on 12 October, but which arose from the statement of co-pilot Doyle about the flight of 11 October. As the investigation continued during November 2014, and the applicant, while working as usual, gave responses to the inquiries that were made by HFO Shugrue, at no stage was she provided with the statement of co-pilot Doyle. In fact, HFO Shugrue deliberately did not provide the applicant with the statement of co-pilot Doyle when, in a communication to SQD Walters on 17 November, he stated:

“I will provide a copy of the Co Pilots [sic] comments by separate email, which will be provided to Captain Gorlin at a later date should any of the allegations be substantiated.”

[101] This statement encapsulates one of the most remarkable approaches to any investigation of allegations against a person that could be contemplated. That is, simply, if the allegations are substantiated then you will be told what they are! It is difficult to imagine any investigative approach which could more blatantly disregard the principles of natural justice.

[102] The applicant was not provided with a proper opportunity to respond to the contents of co-pilot Doyle’s statement, and the factual matters which arose from that statement became substantiated allegations by the time that she first saw the document. The process involving the investigation of the flight of 11 October 2014, which was conducted by various HNZ managers, (save and except for the then CP Findlay), was blatantly flawed and unjust.
[103] Although there was insufficient evidence upon which to establish any firm conclusions, I obtained a strong impression that the applicant’s gender was a significant factor which contributed to the unjust treatment that she suffered, when subjected to the erroneous procedure that commenced when ACP Devescovi went looking for the“dirt” that former CP Findlay spoke of. On occasions during the Hearing, it appeared that evidence which started to traverse the issue of any gender discrimination was deliberately curtailed or avoided by the applicant. Frankly, I gained the impression that the applicant was reluctant to introduce evidence which could be construed as “playing the gender card.” Notwithstanding such constraint, the perception that was almost inescapable was that a number of the males involved resented any form of challenge from a forthright and capable woman.

387 (d) - Unreasonable refusal to allow a support person to assist

[104] The applicant was permitted to have a support person present during the serious formal meeting at which she was dismissed.

387 (e) - Warning about unsatisfactory performance

[105] This factor has no relevance in this instance.

387 (f) - Size of enterprise likely to impact on procedures

[106] The size of the employer’s operation should have provided for a much higher standard of procedure to have been followed.

387 (g) - Absence of management specialists or expertise likely to impact on procedures

[107] Although it appeared that the employer did have dedicated employee relations management specialists, there was evidence that such specialists may not have assisted in ensuring that both substantive and procedural fairness was provided to the applicant.

387 (h) - Other relevant matters

[108] It is appropriate to mention, that, although the analysis of the flight of 11 October 2014 has not provided for findings that the applicant committed serious misconduct, she did nevertheless, pilot the helicopter when it had torque anomalies, which, in hindsight, was an error of judgement. A similar error of judgement was also made by co-pilot Doyle when he flew the helicopter during flight sectors 1 and 2. It would not have been inappropriate for both pilots to have been counselled about their respective errors of judgement on 11 October 2014.

[109] Importantly, the issues surrounding the countermanded instruction of Captain Gorlin contributed to the errors made by both pilots. The circumstances which gave rise to the errors of judgement that were made by both Captain Gorlin and co-pilot Doyle, was a matter that unfortunately appeared to escape identification in the report of SQD Walters. In particular, it was surprising to note Conclusion #4 which stated; “The investigation did not reveal any meaningful systemic factors” 17

[110] It would be alarming if the circumstances which contributed to the judgement errors of the two pilots were not properly analysed and addressed. Protocols concerning any countermanding of instructions given by the Captain of an aircraft, particularly as it is preparing for flight, should be the subject of at the very least, some review.

[111] It should be recognised that any disruption to an optimal level of communication between Captain and co-pilot should be avoided, particularly in circumstances where directives are relayed from a superior who is not directly in contact with both of the relevant pilots. Ideally, any issue which might involve countermanding or other alteration of instructions, or departure from understood protocols, should be achieved by way of established agreement between all members of the flight crew, so as to ensure optimal interpersonal communication between pilots.

Conclusion

[112] In this instance, the applicant was dismissed for alleged serious misconduct which involved the grossly inadequate stated reason of “…not complying with Company SOPs” Following a detailed analysis of the underlying reason for dismissal, no valid reason for dismissal can be sustained.

[113] Upon hearing and careful examination of the evidence, I have concluded that the actions of the applicant in respect to the flight of 11 October 2014, can not be held to be misconduct that justified dismissal. At its highest, the applicant made an error of judgement, which should have been properly considered in the context of the mitigation that arose from the particular circumstances.

[114] Consequently, the substantive reason for the applicant's dismissal has been held to be invalid.

[115] The processes that the employer adopted for dealing with the issues that emerged from the circumstances of the events of 11 October 2014, were severely flawed such that the applicant was denied natural justice. There are no other matters which relevantly impact on the primary findings.

[116] The dismissal of the applicant was harsh, unjust and unreasonable. Consequently, the application for unfair dismissal remedy has met the legislative requirements and it is granted.

Remedy

[117] The applicant has not sought reinstatement as remedy for her unfair dismissal. Instead she has sought remedy in the form of payment of an amount of monetary compensation.

[118] I have decided that compensation would be an appropriate remedy for the applicant’s unfair dismissal, and I turn to the factors which involve the quantification of any amount of compensation.

[119] Section 392 of the Act prescribes certain matters that deal with compensation as a remedy for unfair dismissal. I have approached the question of compensation having regard for the guidelines that have been established in the Full Bench Decision in Sprigg v Paul’s Licensed Festival Supermarket 18 and as commented upon in the subsequent Full Bench Decision in Smith and Ors v Moore Paragon Australia Ltd 19.

[120] Firstly, I confirm that an Order for payment of compensation to the applicant will be made against the employer in lieu of reinstatement of the applicant.

[121] Secondly, in determining the amount of compensation that I Order, I have taken into account all of the circumstances of the matter, including the factors set out in paragraphs (a) to (g) of subsection 392 (2) of the Act.

[122] There was no evidence that an Order of compensation would impact on the viability of the employer’s enterprise.

[123] The applicant had about two years of service with the employer. The applicant would have been likely to have received remuneration of approximately $3325.00 per week if she had not been dismissed. There was clear prospect that the employment of the applicant may have endured for several years.

[124] Immediately following the dismissal, the applicant made efforts to mitigate the loss suffered because of the dismissal. On about 9 March 2015, the applicant secured alternative employment which provided for lesser remuneration at the rate of approximately $2596 per week.

[125] Thirdly, in this instance there was no established misconduct of the applicant which contributed to the employer's decision to dismiss.

[126] Fourthly, I confirm that any amount Ordered does not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt caused to the applicant by the manner of the dismissal.

[127] There are no other relevant matters in this instance.

[128] Consequently for the reasons outlined above, I have decided that an amount approximating with six weeks remuneration should be Ordered as compensation to the applicant. That amount is $19,950.00. Accordingly, separate Orders [PR577543] providing for remedy in these terms will be issued.

COMMISSIONER

Appearances:

Mr S Stephens of the Australian Federation of Air Pilots appeared for the applicant.

Mr R Wade of Ashurst Australia appeared for the employer.

Hearing details:

2015.

Perth:

November 3, 4 & 5.

1 Transcript @ PN3536.

2 MFI 2 @ page 240.

3 Transcript @ PN2361.

4 Transcript @ PN448.

5 See in particular, transcript PN688.

6 Exhibits 8 and 9.

7 Exhibit 6 @ paragraph 84.

8 MFI 2 @ page 265.

9 MFI 2 @ page 241.

10 Exhibit 10 @ paragraph 51.

11 Exhibit 10 @ paragraph 43.

12 MFI 2 @ page 162.

13 Exhibit 10.

14 MFI 2 @ page 164.

15 MFI 2 @ page 217.

16 Transcript @ PN529.

17 MFI 2 @ page 242.

18 Sprigg v Paul’s Licensed Festival Supermarket, (Munro J, Duncan DP and Jones C), (1998) 88IR 21.

19 Smith and Ors v Moore Paragon Australia Ltd, (Lawler VP, Kaufman SDP and Mansfield C), (2004) PR942856.

Printed by authority of the Commonwealth Government Printer

Ivana Gorlin v HNZ Australia Pty Ltd T/A HNZ Australia